Category Archives: transparency

Those of us with long memories will remember that, back in 2007, in those innocent days when no one quite knew what the Freedom of Information Act 2000 (FOIA) really meant, the Information Commissioner’s Office (ICO), disclosed some of its internal advice (“Lines to Take” or “LTTs”) to its own staff about how to respond to questions and enquiries from members of the public about FOIA. My memory (I hope others might confirm) is that ICO resisted this disclosure for some time. Now, the advice documents reside on the “FOIWiki” pages (where they need, in my opinion, a disclaimer to the effect that some of the them at least are old, and perhaps out-of-date).

Since 2007 a number of further FOIA requests have been made for more recent LTTs – for instance, in 2013, I made a request, and had disclosed to me, a number of LTTs on data protection matters.

It is, therefore, with some astonishment, that I note that a recent FOIA request to ICO for up-to-date LTTs – encompassing recent changes to data protection law – has been refused, on the basis that, apparently, disclosure would, or would be likely to, inhibit the free and frank exchange of views for the purposes of deliberation, and would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. This is problematic, and concerning, for a number of reasons.

Firstly, the exemptions claimed, which are at section 36 of FOIA, are the statute’s howitzers – they get brought into play when all else fails, and have the effect of flattening everything around them. For this reason, the public authority invoking them must have the “reasonable opinion” of its “qualified person” that disclosure would, or would be likely to, cause the harm claimed. For the ICO, the “qualified person” is the Information Commissioner (Elizabeth Denham) herself. Yet there is no evidence that she has indeed provided this opinion. For that reason, the refusal notice falls – as a matter of law – at the first hurdle.

Secondly, even if Ms Denham had provided her reasonable opinion, the response fails to say why the exemptions are engaged – it merely asserts that they are, in breach of section 17(1)(c) of FOIA.

Thirdly, it posits frankly bizarre public interest points purportedly militating against disclosure, such as that the LTTs “exist as part of the process by which we create guidance, not as guidance by themselves”, and “that ICO staff should have a safe space to provide colleagues with advice for them to respond to challenges posed to us in a changing data protection landscape”, and – most bizarre of all – “following a disclosure of such notes in the past, attempts have been made to utilise similar documents to undermine our regulatory procedures” (heaven forfend someone might cite a regulator’s own documents to advance their case).

There has been such an enormous amount of nonsense spoken about the new data protection regime, and I have praised ICO for confronting some of the myths which have been propagated by the ignorant or the venal. There continues to be great uncertainty and ignorance, and disclosing these LTTs could go a long way towards combatting these. In ICO’s defence, it does identify this as a public interest factor militating in favour of disclosure:

disclosure may help improve knowledge regarding the EIR, FOIA or the new data protection legislation on which the public desire information as evidenced by our increase in calls and enquiry handling

And as far as I’m concerned, that should be the end of the matter. Whether the requester (a certain “Alan Shearer”) chooses to challenge the refusal is another question.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

There is some irony in the quite extraordinary news that the Independent Commission on Freedom of Information received 30,000 submissions in response to its public call for written evidence: one of the considerations in the call for evidence was the fact that “reading time” cannot currently be factored in as one of the tasks which determines whether a request exceeds the cost limit under section 12 of the FOI Act.

Lord Burns has now announced that

Given the large volume of evidence that we have received, it will take time to read and consider all of the submissions

Well, yes. The Commission originally planned to report its findings “before the end of the year” (that is, the parliamentary year, which ends on 17 December). It also planned to read all the evidence which was before the Justice Committee when it conducted its post-legislative scrutiny of FOIA in 2012, and there was a fairamount of that. But let us put that to one side, and let us estimate that reading and where necessary taking a note of each of the current 30,000 submissions will take someone ten minutes (as some submissions were 400 pages long, this is perhaps a ridiculously conservative estimate). That equates to 300,000 minutes, or 5000 hours, or 208 days of one person’s time (assuming they never slept or took a break: if we imagine that they spent eight hours reading every day, it would be 625 days).

I don’t know what sort of administrative support Lord Burns and his fellow Commission members have been given, but, really, to do their job properly one would expect them to read the submissions themselves. There are five of them, so even assuming they shared the reading between them, we might expect they would between them take 125 days (without a break, and with little or no time to undertake their other jobs and responsibilities) to digest the written evidence.

Lord Burns has sensibly conceded that the Commission will not be able to report by the end of the year, and he has announced that two oral evidence sessions will take place in January next year (although who will participate has not been announced, nor whether the sessions will be broadcast, nor even whether they will take place in public).

What is clear though is that someone or ones has a heck of a job ahead of them. I doubt that the Commission, as an advisory non-departmental public body, would be amenable to judicial review, so it is probably not strictly bound by public law duties to take all relevant evidence into account when arriving at its decisions and recommendations, but, nonetheless, a failure so to do would open it up to great, and justified, criticism.

And, one final point, as Ian Clark noticed when submitting his evidence, the web form was predicated on the assumption that those making submissions would only be from an “organisation”. Surely the Commission didn’t assume that the only people with views on the matter were those who received FOI requests? Surely they didn’t forget that, ultimately, FOIA is for the public?

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Mostly because I haven’t posted much on this blog recently, I’m uploading a version of a talk I gave at the recent conference of the National Police Chiefs Council (NPCC). I was asked to talk, alongside FOIKid Bilal Ghafoor, and tribunal judge David Farrer QC, about what the teenage years of the Freedom of Information Act 2000 might look like. After I’d reflected on this, I ended up rather more optimistic than I expected. YMMV, as they say.

Before I talk about the future, and FOI as it enters those awkward teenage years, I wanted to reflect a bit on its early infanthood. Has it achieved what it was hoped it would achieve? Has it worked well?

As is sometimes overlooked, Parliament declined to enact a purpose clause into the 2000 Freedom of Information Act (against the urging of the then Information Commissioner Elizabeth France). So when we talk about whether FOIA has achieved its aims, we are, to an extent, second guessing what Parliament intended. However, in 2012 the Justice Committee conducted post-legislative scrutiny of FOIA, and the Ministry of Justice (drawing on the original White Paper which preceded the Act) identified four objectives for it:

openness and transparency;

accountability;

better decision making;

and public involvement in decision making, including increased public trust in decision making by government

And the committee felt that FOIA has achieved the first three but the secondary objective of enhancing public confidence in Government had not been achieved, and was unlikely to be achieved.

And I think this is broadly right: we have seen more openness and transparency – when working well together FOIA feeds into the Transparency Agenda and vice versa. Huge amounts of public sector information have been made available where once it wasn’t. And with openness and transparency come, or should come more accountability and better decision making. But that final objective, involving increasing public trust in decision making, has almost been achieved in the negative – and that is partly to do with how the public hear about FOIA. Many, probably most, major FOIA stories run by the media almost inevitably involve scandal or highlight wasteful practice, and often go hand in hand with litigation aimed at preventing disclosure. The MPs expenses scandal was one of FOIA’s major victories (although, let us not forget, it was a leak to the Telegraph, rather than a final FOIA disclosure, that led to the full details coming out) but while it enhanced FOIA’s status, it’s hard to say it did anything but greatly damage public trust in government, and more widely, politicians.

But the Justice Committee report identified something else, and something very relevant when we start to look to the future of FOIA. It stated that “the right to access public sector information is an important constitutional right” – something which Lady Justice Arden also recognised in her recent Court of Appeal judgment in the Dransfield case. And when something is identified as part of our constitution, it becomes pretty hard to remove it, or amend it to any great extent. The Conservative government appear to be experiencing this at the moment, as their plans to repeal the Human Rights Act have been stalled. The Human Rights Act can also be said to have achieved constitutional status – by incorporating the European Convention on Human Rights into the domestic law of the UK, it represented a major shift in how individual rights are protected under British law. It may well end up being the case that the only way the Act could be repealed would be by replacing it with something essentially the same (or by pulling out of the Convention, and pulling out of Europe) and even then, as Lord Bingham said

“Which of these rights…would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any them un-British?”

The rights enshrined in the European Convention are fundamental, and they’re not going to go away, and when one considers that one of them – Article 10 – contains not just the right to freedom of expression, but the right to receive and impart information (subject to necessary and lawful conditions) one can begin to perceive that a Freedom of Information Act helps give effect to this fundamental right.

A majority of the Supreme Court, in the Kennedy judgment last year, went even further, and said that a (qualified) right to receive information from a public authority was not just enshrined in the Convention Rights, but existed (and always has existed) under the Common Law.

What I’m saying, by going off on a somewhat legalistic tangent, is that the right to request and receive public sector information is so fundamentally embedded in our legal and constitutional landscape, that I don’t see any realistic challenge to the principle (and I doubt any of you would). But it also means that any tinkering with the right becomes correspondingly difficult. And this is why although I think FOI will have some teenage tantrums, it won’t have a huge teenage meltdown and emerge from its bedroom a completely different individual.

But with that important caveat, what might we see?

Well, under Francis Maude in the Cabinet Office and Chris Grayling at the Ministry of Justice (although Lib Dem Simon Hughes had the actual FOI brief) we saw significant strides, and a lot of fine words, about the importance of transparency, with Maude even saying in 2012

“I’d like to make Freedom of Information redundant, by pushing out so much data that people won’t have to ask for it”

But they have all gone on to other things – Maude to the Lords, Grayling to Leader of the Commons and Simon Hughes back to his day job, after losing his seat last month. Will this lead to changes? Well, still very much in post is David Cameron, and he has spoken before about his concerns about FOI “furring up the arteries of government” and of FOI’s “buggeration factor”, which doesn’t bode well for those of us who support the Act. And minister with responsibility for FOI (under Michael Gove as Justice Secretary) is Dominic Raab. Raab is strong on civil liberties and is known to be a frequent user of FOI in his parliamentary and constituency work. One of his targets was the Police Federation – in 2011 he sent requests to all forces asking for figures on the number of police staff working full-time for the Federation. But Gove is reputed not to be so keen on FOI – indeed, in 2011 his then Department of Education was found to have used private email accounts to conduct government business, apparently in the belief that this took them outside FOIA.

It does seem clear that any changes to FOIA are not high on the government’s list of priorities: there was nothing in the Conservatives’ election manifesto, and there have been no obvious pronouncements in the early days.

For a flavour though of what might be on the cards it’s instructive to go back to the government response to the post-legislative scrutiny. On the subject of FOI cost limits there was a suggestion that further factors might be taken into account – so, added to the costs of locating and retrieving information it might become possible to take into account consideration and redaction time. This could have more profound effects that is immediately apparent – as most of you will know, those two activities can take up a large amount of time, and if that change were brought in I think we would see a huge increase in cost refusals.

Another related suggestion was that for costs purposes requests from the same person or group of persons could be aggregated EVEN where there was no similarity between the subject of the requests. It is not hard to see how this would be devastating for some journalists who make use of FOI.

And a further suggestion was the introduction of fees for appealing a case to the Information Tribunal. This would be unlikely to affect public authorities, but requesters could well be dissuaded. No doubt some of those would be the more speculative, persistent or frivolous of requesters, but I would be concerned that some well-intentioned requesters would decide not to exercise their rights if such a change were made.

On the more “pro-FOI” side, we are likely to see further public authorities made subject to FOIA. ACPO of course came in in 2012, Network Rail this year, and Theresa May has made clear that she would like to see the Police Federation covered.

But also discussions need to be had about the extent to which private contractors performing public functions are caught by FOI. The government has previously indicated that it thinks this can be achieved through appropriate contractual provisions, but I’m dubious – without a clear legal obligation, and associated enforcement mechanism, I struggle to see why this would happen.

So, despite my optimism that the fundamental principles of FOI are now constitutionally embedded, I don’t necessarily think there will be no changes. But I continue to think they will be essentially minor, and this is because I think there is a further factor which protects those fundamental principles. As I said, Dominic Raab has traditionally used FOI to gather information to better help him in his job. And thousands and thousands of other people do so. Journalists are the most obvious example (and when it comes to defenders of the right to receive information you couldn’t ask for a more vocal group) but campaign groups, other public authorities, academics and private citizens do so. And for this reason FOI is popular. Unlike the Human Rights Act there are no (or very few – I don’t know of any) journalists campaigning for FOIA’s repeal. Politicians don’t campaign on a platform of opposition to the right to receive public information.

FOI does promote better openness and transparency; better accountability; better decision making, and even if it hasn’t yet, and probably never will, improve the public trust in government decision-making, one thing which would further destroy that trust would be changes to make public authorities less accountable. And the media and campaigners would be lined up to make the point vociferously.

FOI may, in its teenage years, suffer from its own equivalent of angst, anger and acne, but it will have strong friends to support it.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with..

Last week, in a testy exchange with Ben Emmerson QC, the Chairman of the House of Commons’ home affairs select committee, Keith Vaz, trumpeted his committee’s commitment to transparency. The committee was taking evidence on the Independent panel inquiry into child sexual abuse and, at one point, Mr Emmerson QC, who had been heavily criticised by panel member Sharon Evans at a previous committee session, was keen to known whether a letter she had written had been, as Mr Vaz had previously indicated, published on the committee’s website. Mr Vaz replied (at 16:34:46)

Yes, yes, all letters that we receive – we don’t believe in suppressing information. This is Parliament so we put everything on the website

However, it now transpires that, when he said “everything”, this might have been taken too literally. It appears that not just correspondence might have been published, but, also, the names of four survivors of abuse. Sky News reports that

Survivors of child sex abuse have received death threats after their personal details and confidential communications with an abuse inquiry were published online.

Members of the group have written to the Home Secretary expressing “grave concern” about the publication of documents they say were leaked by a member of an abuse inquiry panel

In response, Mr Vaz, the Telegraph reports, said “The names of all these individuals were already in the public domain”.

However, just because names of victims or alleged victims of sexual offences are in the public domain does not provide a defence, for instance, to a charge under section 5 of the Sexual Offences (Amendment) Act 1992, (SO(A)A) which provides lifetime anonymity for such people, insofar as no publication may be made of their name, or address, or a still or moving picture of them.

Moreover, even if personal data is in the public domain, the provisions of the Data Protection Act 1998 (DPA) apply, and in the absence of a legal basis for publication, there will be a contravention of that Act if personal data is published unfairly. Given that complaints have been made about this publication, it certainly seems to be the case that the data subjects did not consent to such publication, and would not have had a reasonable expectation that it would happen. That would tend to suggest unfair processing.

I have written before about the dangers of inadvertently disclosing personal data in pursuance of an over-eager transparency agenda. It may be that Mr Vaz’s commitment to transparency on the part of his committee has realised these dangers.

However (and contrary to what I suggested in the first draft of this post – thanks Rich Greenhill) it appears that information published by a parliamentary committee is likely to be covered by parliamentary privilege (pages 58-59 of the Select Committee Red Book), and Greg Callus informs me that I failed to check the early-Victorian statute book – the Parliamentary Papers Act 1840 lays the basis for parliamentary privilege. This would probably provide a defence to charge of breach of SO(A)A, but it wouldn’t necessarily completely oust the regulatory jurisdiction of the Information Commissioner, in the event that the publication was inadvertent, as opposed to deliberate, and to the extent that it evinced a lack of organisational and technical measures to safeguard against unlawful or unfair processing of personal data (in contravention of the seventh data protection principle). This is because the DPA exemption (section 35A) applying to parliamentary privilege does not cover the seventh principle.However, I’m sure this is purely an academic question.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Yesterday, after attending a fascinating and in-depth briefing from Network Rail on their journey towards being subject to the Freedom of Information Act 2000, I was privileged to appear on a panel debating “In a world of Freedom of Information, does voluntary transparency still matter?” Although rather daunted by the illustrious fellow panel members – the Campaign for Freedom of Information‘s Maurice Frankel, the Guardian’s Jane Dudman and Sir Alex Allan KCB1 – I delivered a short address on the subject (as did those others). Perhaps unsurprisingly, the panel were unanimous in feeling that voluntary transparency does still matter in a world of FOI, but, just as importantly, that voluntary transparency does not and should not make FOI redundant. This is broadly what I said, with added hyperlinks:

A very wise man called Tim Turner once wrote: “The point of FOI is that you get to ask about what YOU want to know, not what The Nice Man Wants To Tell You”. And this I think is the key point which distinguishes the access rights afforded to individuals under Freedom of Information and related legislation, from the transparency agenda which has led to the UK government again this week being pronounced the most open and transparent in the world, by Tim Berners Lee’s World Wide Web Foundation.

At the same time as that first place was announced, cynics amongst us might have pointed to the fact that in the 2013 Global Right to Information Ratings compiled by Access Info and the Canadian Centre for Law and Democracy, the UK was in 29th place, behind countries like Kyrgyzstan and Sierra Leone.

There’s clearly a gap in perception there, and one that is not simply explained away by questions about methodology.

In 2012 Francis Maude said “I’d like to make Freedom of Information redundant, by pushing out so much data that people won’t have to ask for it”. While this is in some ways a laudable aim, it is simply never going to wash: there will always be some information which Mr Maude doesn’t want disclosed, but which I, or, you, or someone else, does (to illustrate this one only has to look at how regularly the Cabinet Office claims FOI exemptions and refuses to disclose).

By the same token Network Rail, who have disclosed an impressive amount of valuable data over recent years, would not, I am sure, pretend that they expect only ever to disclose information in response to FOI requests, when they come under the Act’s coverage in a few months. There will clearly be information which they will not be able to disclose (and for perfectly valid reasons).

The transparency agenda cannot simply sweep away concerns about disclosure of commercially sensitive information, or of personal data, or of information which might prejudice national security. But there will always be people who want this information, and there will always be the need for a legal framework to arbitrate disputes about disclosure, and particularly about whether the public interest favours disclosure or not.

And, as a brief aside, I think there’s an inherent risk in an aggressive, or, rather, enthusiastic, approach to publication under a transparency agenda – sometimes information which shouldn’t be published does get published. I have seen some nasty erroneous, and even deliberate, disclosures of personal data within Open Datasets. The framework of FOI should, in principle at least, provide a means of error-checking before disclosure.

When FOI was in its infancy we were assured that effective and robust publication schemes would ultimately reduce the amount of time spent dealing with FOI requests – “Point them to the publication scheme” we were told…While I am sure that, on some level, this did transpire, no one I have spoken to really feels that proactive publication via a publication scheme has led to a noticeable decrease in FOI requests. And I think the same applies with the Transparency Agenda – as much as Mr Maude would like to think it will make FOI redundant, it has, and will continue to have, only a minor effect on the (necessary) burden that FOI places on public authorities.

I do not think we are going to see either the Transparency Agenda dispense with FOI, nor FOI dispense with the Transparency Agenda: they are, if not two sides of the same coin, at least two different coins in the same purse. And we should always bear in mind that public scrutiny of public authorities is not just about what the Nice Man Wants To Tell You, but is equally about what the Nasty Man Doesn’t Want To Tell You.

1I’m delighted to see from his Wikipedia entry that Sir Alex is a huge Grateful Dead fan, and that further research suggests that this isn’t just Wikipedian inaccuracy

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

The High Court has quashed planning permission for a wind turbine because the Council involved failed to make information available beforehand, in breach of its legal obligations

The statutory rights to information held by public authorities which commenced in January 2005 – when the Freedom of Information Act 2000 and the Environmental Information Regulations 2004 came into effect – are not the only legal mechanism whereby people can or must have public information imparted to them. For instance, sections 100A-E of the Local Government Act 1972 (as inserted by the Local Government (Access to Information) Act 1985) deal with access to meetings of and information relating to meetings of specified local authorities (broadly, County, Borough, District, City or Unitary Councils). Section 100B deals with access to agendas and reports and section 100D with access to background papers. In both cases these must be “open to inspection by members of the public at the offices of the council” at least five clear days before the meeting (“clear days” refers to weekday working days and does not include the day of publication or the day of the meeting (R v Swansea City Council, ex p Elitestone Ltd (1993) 66 P. & C.R. 422)).

But what happens if these obligations are not complied with? what, for example, happens if background papers are not available for inspection for five clear days before a meeting? Often, nothing happens at all, but sometimes such a failure can be significant and costly. In a recent case (Joicey, R (on the Application of) v Northumberland County Council [2014] EWHC 3657) this is exactly what transpired. A planning application for a wind turbine was at issue,1 with a meeting scheduled for 5 November 2013 to consider it. The judgment informs us that “the officer’s report recommending approval…subject to conditions, was made available on 23 October” (it is not clear whether this means made available only for inspection, or whether it was also available on the Council’s website, although nothing turns on this). A Dr Ferguson, opposing the application (and a friend of the applicant Mr Joicey) noticed from the officer report that an external noise assessment report had been commissioned and produced. He emailed the Council on 30 October asking about the noise assessment report, getting no immediate reply, and attended the Council offices on 1 November to inspect the files, but no noise assessment report was included. On 4 November, the day before the committee meeting, he received a reply to his 30 October email, with a copy of the noise assessment report attached. The same day a copy of the report was uploaded to the Council website.

The committee approved the application, despite Mr Joicey addressing the meeting in the following terms

Noise impact assessment has been carried out again, in full, for this application, but I don’t suppose any of you have seen it, because this highly relevant document (74 pages of it) appeared only yesterday, and that was after requests to see it. If you study it, and you are properly armed with the knowledge of previous planning history connected with this site, you will find that it is actually fundamentally flawed, again, and that it shows that this application must actually be refused on noise grounds.

Mr Joicey brought judicial review proceedings on six grounds, but the one which concerns us here is the first: the non-availability of the noise assessment. As the noise assessment report was not included in a list of the background papers for the report to the committee, and was not available for inspection five clear days before the meeting there was, said Mr Justice Cranston

no doubt that there were a number of breaches of the public’s right to know under the Local Government Act 1972

Furthermore, the fact that the report was not available on the Council’s website was a breach of its undertakings in its Statement of Community Involvement (SCI) prepared pursuant to its obligations under section 18(1) of the Planning and Compulsory Purchase Act 2004. The Council’s SCI stated that “Once a valid planning application has been received we will…Publish details of the application with supporting documentation on the council website.” The Council even conceded that, although the report had been uploaded on 4 November, it had been described as published on 9 September, and the judge took a “dim view of any public authority backdating a document in a manner which could give a false impression to the public”. The undertaking in the SCI went further, said the judge, than the statutory obligations in the 1972 Act, and constituted a continuing promise giving rise to a legitimate expectation on the part of the public, and “otherwise the public’s right to know what is being proposed regarding a planning application would be frustrated”.

But what was the effect of these failings? The Council submitted that no prejudice had been caused to the claimant, because the planning committee’s decision had been inevitable and, adopting the test in Bolton MBC v Secretary of State for the Environment (1990) 61 P. & C.R. 343, if the court was uncertain whether, absent the failings, there would be a real possibility of a different decision being there was no basis for concluding that it was invalid. However, Mr Justice Cranston held that the correct test was different: drawing on the authorities of Simplex GE Holdings Ltd v Secretary of State for Environment (1988) 3 PLR 25 and R(on the application of Holder) v Gedding District Council [2014] EWCA Civ 599 he said that

the claimant will be entitled to relief unless the decision-maker can demonstrate that the decision it took would inevitably have been the same had it complied with its statutory obligation to disclose information in a timely fashion [emphasis not in original]

And in this case the Council failed to persuade him that the decision would inevitably have been the same if the noise assessment report had been made available earlier: the issue of noise had been a key one in earlier challenges to the developments and remained so now, and Mr Joicey could have made further representations and sought further expert opinion which might have persuaded the planning committee.

Some of Mr Joicey’s other grounds of challenge succeeded, and some failed, but the merits of the successful challenges led to the planning permission being quashed.

Local authorities would do well to note the strictness of the test here: breaches of the access to information provisions of the 1972 Local Government Act, and of the undertakings in a Statement of Community Involvement, will mean decisions taken are liable to be quashed upon challenge, unless the decision would inevitably have been the same without the breaches. Inevitability is a hard thing to prove.

1Northumberland County Council, despite its name, is a unitary authority, and, therefore, a local planning authority

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Not for the first time the Local Government Association (LGA), an almost entirely public-funded association of first- and second-tier local councils in England and Wales, has produced a press release bemoaning the fact that its members have to deal with “wacky FOI requests”. Peter Fleming, of the LGA’s Improvement Board, is quoted as saying

While the majority of requests to councils are for details of council policy and expenditure, some of the FoI requests received do not relate very closely to the services they are focused on providing every day of the year. Councils are working very hard to keep local communities running as efficiently as possible during these challenging financial times and anything which distracts from that can affect the value for money that taxpayers receive

Examples of “wacky requests” are given, and the implication is very much that the requesters were wasting public money by making them. So let’s have a look at them:

Please list all the types of animals you have frozen since March 2012, including the type and quantity of each animal?

How very wacky. Or is it? Some councils freeze dead dogs and cats found by the roadside so that concerned or distressed owners of lost animals can try to locate them. Maybe that practice is beyond what councils need to do, and it certainly involves public expenditure. What is so wrong with someone wanting to look into the practice by making a relevant FOI request? Indeed, at least one council makes the information available as a dataset.

How many times has the council paid for the services of an exorcist, psychic or religious healer? Were the services performed on an adult, child, pet or building?

Please can you let me know how many roundabouts are located within your council boundaries?

How wacky. But, research suggests that optimal use and placement of roundabouts on a highway network reduces delays and accidents, with consequent potentially large savings to the public purse. It seems entirely legitimate to request information like this, perhaps in pursuance of an investigation into whether a council is apportioning its resources properly when it comes to highways management.

What precautions, preparations, planning and costings have been undertaken in the case an asteroid crashes into Worthing, a meteorite landing in Worthing or solar activity disrupting electromagnetic fields?

How wacky. In fact, yes it is, despite what former MPs say. And despite the fact that, yes, I know there is always a risk of asteroidal impact. Move along.

How many holes in privacy walls between cubicles have been found in public toilets and within council buildings in the last 10 years?

How many bodies are there in mortuaries that have been unclaimed for ten years? How long have these bodies been in the mortuary? How old were they when they died? Is it possible to have the names of these people?

I’m not saying that my speculations about the reasons behind these requests are right. Maybe some of the requests were made for entirely frivolous purposes, or to waste councils’ time and money, but I’m far from convinced that is the case. And, of course, if the requests were entirely frivolous the Freedom of Information Act 2000 contains a provision which enables the authority to dismiss them forthwith. Truly frivolous requests should not cost a council more than a few minutes’ work, and, in my experience, they are rare.

Careful readers will note that I haven’t mentioned the first of the LGA’s examples:

What plans are in place to protect the town from a dragon attack?

How wacky. Yes, boringly, gloom-inducingly unfunnily “wacky”, and thoroughly demolished (while questioning the motives of the council who publicised it) by Tim Turner only a couple of months ago.

There are many serious threats to councils’ revenues, but I don’t accept that FOI is one of them. FOI costs, but it costs relatively little and it has big societal benefits, as the Justice Committee recognised in 2012 when it called it a “significant enhancement of our democracy”. Truly “wacky requests” can be deftly deflected by using the “vexatiousness exemption” of the FOI Act, but let’s not assume that all requests with apparently wacky themes have unserious motives. And – digressing somewhat – let us not forget the LGA is not subject to FOI.

In the early days of the Freedom of Information Act 2000 (FOI) there were frequent attempts to get the government to disclose detailed information about its wine cellar (see for instance this seemingly interminable request). Eventually, the Information Commissioner got fed up with the lack of FOI hospitality from the Foreign and Commonwealth Office (FCO), who seem to be responsible for this sort of thing, and started issuing decision notices requiring disclosure.

I’m pleased to see that disclosure is now, if not a matter of routine, not resisted by FCO (except for some intriguing little redactions – one wonder if they hide things like “this is the Minister for X’s favourite”). So, we now know that the government has reserves of, for instance, 139 bottles of Latour 1961, with a market value of £321,000. This is the highest value wine, but we (sorry, they) also hold 110 bottles of Chateau Margaux 1983 (market value £15k – not the best vintage, after all). And their Pétrus is only the 1978, but even so, the estimated market value of £250 seems very low.

It’s a shame the dataset isn’t in resuable format, but, we’re all in it together, so I’d invite others to search out some other interesting cellar items. Those Krug ’82 magnums look a steal at £125 a pop…

With the rushing through of privacy-intrusive legislation under highly questionable procedures, it almost seems wrong to bang on about political parties and their approach to ePrivacy and marketing, but a) muchbetterpeople have written on the #DRIP bill, and b) I think the two issues are not entirely unrelated.

Today, prompted by a twitter exchange with the excellent Lib Dem councillor James Baker, in which I observed that politicians and political parties seem to be exploiting people’s interest in discrete policy issues to harvest emails, I looked at the Liberal Democrats’ home page. It really couldn’t have illustrated my point any better. People are invited to “agree” that they’re against female genital mutilation, by submitting their email address.

There’s no information whatsoever about what will happen to your email address once you submit it. So, just as Labour were, but even more clearly here, the Lib Dems are in breach of the The Privacy and Electronic Communications (EC Directive) Regulations 2003 and the Data Protection Act 1998. James says he’ll contact HQ to make them aware. But how on earth are they not already aware? The specific laws have been in place for eleven years, but the principles are much older – be fair and transparent with people’s private information. And it is not fair (in fact it’s pretty damn reprehensible) to use such a bleakly emotive subject as FGM to harvest emails (which is unavoidably the conclusion I arrive at when wondering what the purpose of the page is).

So, in the space of a few months I’ve written about the Conservatives, Labour and the Lib Dems breaching eprivacy laws. If they’re unconcerned about or – to be overly charitable – ignorant of these laws, then is it any wonder that they railroad each other into passing “emergency” laws (which are anything but) with huge implications for our privacy?

UPDATE: 13.07.14

Alistair Sloan draws attention to the Scottish National Party’s website, which is similarly harvesting emails with no adequate notification of the purposes of future use. The practice is rife, and, as Tim Turner says in the comments below, the Information Commissioner’s Office needs to take action.

“…investigation by and even adverse comment from the Ombudsman is one of the slings and arrows of local government misfortune with which broad shouldered officials have to cope…” (Feld v London Borough of Barnet [2004] EWCA Civ 1307)

Ombudsmen loom over the actions of many public authorities. Particularly, the NHS and local authorities are subject to the scrutiny of respectively, the Parliamentary and Health Service Ombudsman (PHSO), and the Local Government Ombudsman (LGO). The Ombudsmen themselves must have broad shoulders, subject as they are to the oversight of both parliament, and, because they are public authorities subject to the Freedom of Information Act 2000 (FOIA), the Information Commissioner’s Office (ICO).

The PHSO was recently asked, under FOIA, for the email address and telephone number of the Ombudsman herself, Dame Julie Mellor. The request was refused, on the basis of the exemption at section 40(2) of FOIA – namely that the requested information was Dame Julie’s personal data, and disclosure would breach the first data protection principle in the Data Protection Act 1998. This refusal has now been upheld by the ICO, in a decision notice which explains that

the data requested relates to a living individual who may be identified from that data and that [therefore] it constitutes personal data

That much is uncontroversial: a person’s email address and telephone number will generally be held to be their personal data, even in a professional context, providing that they can be identified from that data. However, the ICO goes on to say

the Commissioner considers that the Ombudsman would have a reasonable expectation that her email address and direct telephone number would not be placed into the public domain by disclosure under the FOIA…

…The Commissioner is aware that the requested email address and telephone number are personal to the Ombudsman but are professional contact details. He considers that their disclosure is unlikely to cause the Ombudsman distress on a personal level. However the Commissioner is satisfied that disclosure would disrupt the running of the organisation and it is apparent that the consequences would have a negative impact upon the PHSO

This seems to conflate two quite separate issues – personal privacy, and organisational impact. As far as I can understand it the argument is that, because this is personal data, and because disclosure would disrupt the running of the organisation, disclosure would not be “fair”, in line with the requirements of the first data protection principle. But, as the ICO’s own guidance on disclosure of personal data under FOIA explains (paragraph 44), the consequences to be taken into account are those to the data subject, not to their organisation, or a third party.

If disclosure of information would disrupt the running of a public authority, there are other, more appropriate FOIA exemptions which might apply. Specifically, section 36(2)(c), for situations where disclosure would prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs.

But even then I struggle to see how disclosure of such innocuous information would really cause sufficient prejudice to warrant keeping this information secret – shouldn’t the Ombudsman be able to implement systems to deal with a possible increase in emails and calls if the email address and phone number were made public? Isn’t this sort of potential irritation one of the slings and arrows of administrative misfortune with which broad shouldered officials have to cope?

(As a footnote to this piece, neither the section 40(2), nor the section 36(2)(c) are going to carry much weight when the information is readily available online already. I will not link to it, because I’m a cautious soul, but Dame Julie’s email address, at least, has been published on the internet as part of a document created by her, and hosted by a reputable academic institution.)